Senate Bill 2238; House Bill 4636
103D CONGRESS
2D Session
IN THE SENATE OF THE UNITED STATES
Mr Kennedy (for himself, Mr CHAFEE, Mr. AKAKA, Mr. JEFFORDS,
Mr. BINGAMAN, Mr. PACKWOOD, Mrs. BOXER, Mr. BRADLEY, Mr. DODD,
Mr. FEINGOLD, Mrs. FEINSTEIN, Mr.HARKIN, Mr. INOUYE,
Mr. KERRY, Mr. LAUTENBERG, Mr. LEAHY, Mr. LEVIN, Mr. LIEBERMAN,
Mr. METZEN-BAUM, Ms. MIKULSKI, Ms. MOSELEY-BRAUN, Mr. MOYNIHAN,
Mrs. MURRY, Mr. PELL, Mr. RIEGLE, Mr. SIMON, Mr. ROBB, Mr. SARBANES,
and Mr. WELLSTONE) introduced the following bill;
A BILL
To prohibit employment discrimination on the basis of sexual orientation.
Be it enacted by the Senate and House of Representives
of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the "Employment Non-Discrimination Act of 1994"
SEC. 2. FINDINGS AND PURPOSES.
(a) FINDINGS.- The Congress finds that (1) an individual's
sexual orientation bears no relationship to the individual's
ability to contribute fully to the economic and civil life of society:
(2) historically, American society has tended to isloate,
stigmatize, and persecute gay men, lesbians, and bisexuals;
(3) one of the main areas in which gay men, lesbians, and bisexuals
face discrimination is employment;
(4) employment discrimination on the basis of sexual orientation
violates fundamental American values of equality and fairness;
(5) the continuing existence of employment discrimination
on the basis of sexual orientation denies gay men, lesbians,
and bisexuals equal opportunity in the workplace and affects
interstate commerce;
(6) individuals who have experienced employment discrimination
on the basis of sexual orientation often lack recourse under Federal law; and
(7) gay men, lesbians, and bisexuals have historically been
excluded from full participation in the political process,
comprise a discrete and insular minority, and have historically
been subjected to purposeful unequal treatment based on
characteristics not indicative of their ability to paraticipate in
or contribute to society.
(b) PURPOSE.-- It is the purpose or this Act--
(1) to provide a comprehensive Federal prohibition of employment
discrimination on the basis of sexual orientation;
(2) to provide meaningful and effective remedies for employment
discrimination on the basis of sexual orientation; and
(3) to invoke congressional powers, including the powers
to enforce the 14th amendment to the Constitution and to
regulate commerce, in order to prohibit employment discrimination
on the basis of sexual orientation.
SEC. 3. DISCRIMINATION PROHIBITED.
A covered entity, in connection with employment or employment opportunities,
shall not---
(1) subject an individual to differnet standards or treatment on the
basis or sexual orientation;
(2) discriminate against an individual based on the sexual orientation of
persons with whom such individual is believed to associate or to have
associated; or
(3) otherwise discriminate against an individual on the basis of
sexual orientation.
SEC. 4. BENEFITS.
This Act does not apply to the provision of employee benefits
to an individual for the benift of his or her partner.
SEC. 5. NO DISPARATE IMPACT.
The fact that an employment practice has a disparate impact,
as the term "disparate impact" is used in section 703 (k)
of the Civil Rights Act of 1964 (42 U.S.C. 2000e--2 (k)),
on the basis of sexual orientation does not establish a prima facie
violation of this Act.
SEC.6. QUOTAS AND PREFERENTAL TREATMENT PROHIBITIED.
(a) QUOTAS.-- A covered entity shall not adopt or implement a quota on
the basis of sexual orientation.
(b) PPREFERENTIAL TREATMENT.-- A covered entity shall not
give preferential treatment to an individual on the basis of sexual orientation.
SEC. 7. RELIGIOUS EXEMPTION.
(a) IN GENERAL.-- Except as provided in subsection (b), this Act shall not
apply to religious organizations.
(b) FOR- PROFIT ACTIVITIES.-- This Act shall apply to a
religious organization's for-profit activities subject to
taxation under section 511(a) of the Internal Revenue Code
of 1986 as in effect on the date of enactment of this Act.
SEC.8. NON-APPLICATION TO MEMBERS OF THE ARMED FORCES; VETERANS' PREFERENCES.
(a) EMFORCEMENT POWERS.--With respect to the administration and the
enforcement of this Act--
(1) the Commission and the Librarian of Congress shall
have the same powers, respectively, as the Commission and
the Librarian of Congress have to administer and enforce
title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.);
(2) the Attorney General or the United States shall have
the same powers as the Attorney General has to administer and enforce
such title; and
(3) the district courts of the United States shall have
the same jurisdiction and powers as suchcourts have to enforce
such title and section 309 of the Civil Rights Act of 1991 (2 U.S.C 1209).
(b) PROCEDURES AND REMEDIES.--The procedures and remedies
applicable to a claim for a violation of this Act are as follows:
(1) For a violation alleged by an individual, other than
an individual specified in paragraph (2) or (3), the procedures
and remedies applicable to a claim brought by an individual
for a violation of title VII of the Civil Rights Act of 1964
(42 U.S.C. 2000e et seq.) shall apply.
(2) For a violation alleged by an employee of the House
of Representives or of an instrumentality of the Congress,
the procedures and remedies applicable to a claim by such
employee for a violation of section117 of the Civil Rights Act of 1991
(2 U.S.C. 60i ) shall apply.
(.) For a violation alleged by an employee of the Senate,
the procedures amd remedies applicable to a claim by such
an employee for a violation of section 302 of the Civil Rights Act of 1991
(2 U.S.C. 1202) shall apply.
SEC.10. STATE AND FEDERAL IMMUNITY.
(a) STATE IMMUNITY.-- A State shall not be immune under
the 11th amendment to the Constitution of the United States
from an action in a Federal court of competent jurisdiction
for a violation of this Act. In an action against a State
for a violation of this Act, remedies (including remedies
at law and in equity) are available in an action against any public or
private entity other than a State.
(b) LIABILITY OF THE UNITED STATES.-- The United States
shall be liable for all remedies under this Act to the same
extent as a private person and shall be liable to the same
extent as a nonpublic party for intreat to compensate for delay in payment.
SEC.11. ATTORNEYS' FEES.
In any action or administrative proceeding commenced pursuant
to this Act, the court or the Commission, inits discretion,
mat allow the prevailing party, other than the United States
shall be liable for the foregoing the same as a private person.
SEC.12. RETAILATION AND COERCION PROHIBITED.
(a) RETALIATION.-- A covered entity shall not discriminate
against an individual because such individual opposed and
act or practice prohibited by this Act or because such individual
made a charge, assisted, testified, or participated in any
manner in an investigated, proceeding, or hearing under this Act.
(b) COERCION.-- A person shall not coerce, intimidate, treaten,
or interfere with any individual in the exercise or enjoyment
of or on account of his or her having exercised, enjoyed,
assisted, or encouraged the exercise or enjoyment of, any right protected
by this Act.
SEC.13. POSTING NOTICES.
A covered entity shall post notices for employees, applicants
for enployment, and menbers descriding the applicable provisions
of this Act, in the manner prescribed by, and subject to
the penalty provided under section711 of the Civil Rights Act of 1964
(42 U.S.C. 2000e-10).
SEC.14. REGULATIONS.
The Commission shall have the authority to issue regulations to carry out
this Act.
SEC.15. RELATIONSHIP TO OTHER LAWS.
This Act shall not invalidate or limit the rights, remedies,
or procedures available to an individual claiming discrimination
prohibited under any other Federal law or any law of a State or political
subdivision of a State.
SEC. 16. SEVERABILITY.
If any provision of this Act, or the application of such
provision to any person or circumstance, is held to be invalid,
the remainder of this Act and the application of such provision
to other persons or circumstances shall not be affected thereby.
SEC. 17. EFFECTIVE DATE.
This Act shall take effect 60 days after the date of the
enactment of this Act, and shall not apply to conduct occuring before
such effective date.
SEC.18. DEFINITIONS.
(1) the term "commerce" has the meaning given such term
in section 701(g) of the Civil Rights Act of 1964 (42 U.S.C. 2000e (g));
(2) the term "Commission" means the Equal Employment Opportunity
Commission establishedby section 705 of the Civil Rights Act of 1964
(42 U.S.C. 2000e-4)
(3) the term "covered enity" means an employer, emplyment
angency, labor organization, joint labor-management committee,
an entity to which section 717(a) of the Civil Rights Act
of 1964 (42 U.S.C. 2000e(a)) applies, an employing authority
of the House of Representatives, an employing office of the Senate,
or an instrumentality of the Congress;
(4) the term "employee of the Senate" has the meaning given
such term in section 301(c) of the Civil Rights Act of 1991 (2 U.S.C. 1201(c);
(5) the term "employer" has the meaning given such term
in section 701(b) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(b));
(6) the term "employment agency" has the meaning given such
yerm in section 701(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e (c));
(7) The term "employment or employment opportunities" including
jod application procedures, hiring, advancement, discharge,
compensation, job training, or any other term, condition, or privilege
of employment;
(8) the term "instrumentalities" of the Congress" has the
meaning given such term in section 117(b)(4) of the Civil Rights Act of 1991
(2 U.S.C. 60I(b)(4));
(9) the term "labor organization" has the meaning given
such term in section 701(d) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(d));
(10) the term "person" has the meaning given such term in
section 701(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(a));
(11) the term "religious organization" means--
(A) a religious corporation,association, or society; or
(B) a college, school, university, or other educational institution,
not otherwise a religious organization, if---
(i) it is in whole or substantial part controlled, managed, owned, or
supported by a religious corporation, association, or society; or
(ii) its curriculm is directedtoward the propagation of a particular
religion;
(12) the term "sexual orientation" means lesbian, gay, bisexual or heterosexual
orientation, real or perceived, as manifested by identity, acts, statements,
or associations; and
(13) the term "State" has the meaning given such term in
section 701(i) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(i)).